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Wed March 26, 2014

DENR to Reevaluate How Groundwater Contamination is Regulated, How to Move Ahead in Duke Lawsuits

The two ash impoundments at Duke Energy’s Asheville Plant near the French Broad River.

Roy Tennant

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It will be another three weeks before Duke Energy must formally respond to accusations of illegally pumping coal ash waste into a tributary that connects to the Cape Fear River.

The news – which broke last week – included an estimate from state regulators that about 61 million gallons of untreated waste water from Duke’s Chatham County plant found its way into the river sometime between last September and this month.

But as WHQR’s Rachel Lewis Hilburn reports, state regulators had already backed away from a negotiated settlement with Duke about coal ash impoundments at two other facilities.

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The state’s Department of Environment and Natural Resources, or DENR, filed a lawsuit against the utility giant last year over unpermitted waste water discharges and groundwater violations involving facilities in Gaston and Buncombe Counties. A few months later, DENR would pursue similar legal action against Duke over its Sutton Plant outside of Wilmington.

But the resolution of that first lawsuit would likely set the tone for the outcome of others.

The two parties reached an agreement that would require Duke to pay a fine of slightly more than $99,000 with no guarantee of coal ash clean-up at its facilities.

And then just last month, a storm water pipe burst at a Duke plant in Eden -- dumping coal ash into the Dan River and contaminating more than 70 miles of it with toxic sludge.

Drew Elliot is a spokesman for DENR.

“After the Dan River spill, and when we looked at the new information we were getting about ash ponds, we knew we wanted to do further detailed inspections of ash ponds with the knowledge we had gained at Dan River. We knew that we might make different decisions based on what happened at Dan River.”

But that Consent Order – the mutually agreed-upon settlement between DENR and Duke -- was sitting on a judge’s desk, waiting for a signature. DENR officials asked for more time.

And then a Wake County Judge ruled that the Consent Order itself was based upon an incorrect interpretation of an environmental rule.

“So we’re looking at not only how do we go forward in our lawsuits against Duke Energy based on this new interpretation -- but how do we regulate groundwater contamination overall considering this new interpretation?”

In the meantime, DENR has announced plans to collaborate with a number of other agencies on the Dan River clean-up – including the Environmental Protection Agency.